[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 157 The defendant is a contractor with the city of New York. His contract was for the construction of sewer basins. In doing the work, he employed laborers not citizens of the United States. One of them was an Italian. The nationality of the others is not shown. Because of the employment of these aliens, he has been convicted of violating section 14 of the Labor Law (L. 1909, ch. 36, Cons. Laws, ch. 31). The section reads as follows:
"Section 14. Preference in employment of persons upon public works. In the construction of public works by the state or a municipality, or by persons contracting with the state or such municipality, only citizens of the *Page 159 United States shall be employed; and in all cases where laborers are employed on any such public works, preference shall be given citizens of the state of New York. In each contract for the construction of public works a provision shall be inserted, to the effect that, if the provisions of this section are not complied with, the contract shall be void. All boards, officers, agents or employees of cities of the first class of the state, having the power to enter into contracts which provide for the expenditure of public money on public works, shall file in the office of the commissioner of labor the names and addresses of all contractors holding contracts with said cities of the state. Upon the letting of new contracts the names and addresses of such new contractors shall likewise be filed. Upon the demand of the commissioner of labor a contractor shall furnish a list of the names and addresses of all subcontractors in his employ. Each contractor performing work for any city of the first class shall keep a list of his employees, in which it shall be set forth whether they are naturalized or native born citizens of the United States, together with, in case of naturalization, the date of naturalization and the name of the court where such naturalization was granted. Such lists and records shall be open to the inspection of the commissioner of labor. A violation of this section shall constitute a misdemeanor and shall be punishable by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment for not less than thirty nor more than ninety days, or by both such fine and imprisonment."
The Appellate Division has held that this statute violates both the state and the federal constitution. Its effect, we are told, is to deprive the excluded aliens of their liberty without due process of law, in that they are denied the right to labor on the public works. (Federal Const. 14th Amendment; State Const. art. 1, sec. 6.) The effect also is, we are told, to deny to the excluded aliens the equal protection of the laws. (Federal Const. 14th Amendment.) *Page 160 It is true the defendant is not within the excluded classes. (Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 545.) He is charged, however, with a crime, and the crime is said to have been the refusal to discriminate, and nothing else. The laborers whom he has employed are within the excluded classes; and if they had a right to serve, he on his side had a right to employ. To refuse to give effect to an unlawful discrimination, and to do this at the instance of those against whom the discrimination is aimed, cannot constitute a crime. The question whether this statute does discriminate against aliens in violation of the constitution is, therefore, we think, before us.
The moneys of the state belong to the people of the state. They do not belong to aliens. The state, through its legislature, has given notice to its agents, that in building its public works, it wishes its own moneys to be paid to its own citizens, and if not to them, then, at least, to citizens of the United States. The argument is made that in thus preferring its own citizens in the distribution of its own wealth, it denies to the alien within its borders the equal protection of the laws.
The people, viewed as an organized unit, constitute the state. (Penhallow v. Doane's Adm., 3 Dallas, 54, 100; Texas v.White, 7 Wall. 700, 720.) The members of the state are its citizens. (United States v. Cruikshank, 92 U.S. 542, 549;Minor v. Happersett, 21 Wall. 162.) Those who are not citizens, are not members of the state. Society thus organized, is conceived of as a body corporate. Like any other body corporate, it may enter into contracts, and hold and dispose of property. In doing this, it acts through agencies of government. These agencies, when contracting for the state, or expending the state's moneys, are trustees for the people of the state. (Illinois v. Illinois Central R.R. Co., 146 U.S. 387.) It is the people, i.e., the members of the state, who are contracting or expending their own moneys through agencies of their *Page 161 own creation. Certain limitations on the powers of those agencies result from the nature of the trust. (Illinois v. IllinoisCentral R.R. Co., supra.) Since government, in expending public moneys, is expending the moneys of its citizens, it may not by arbitrary discriminations having no relation to the public welfare, foster the employment of one class of its citizens and discourage the employment of others. It is not fettered, of course, by any rule of absolute equality; the public welfare may at times be bound up with the welfare of a class; but public welfare, in a large sense, must, none the less, be the end in view. Every citizen has a like interest in the application of the public wealth to the common good, and the like right to demand that there be nothing of partiality, nothing of merely selfish favoritism, in the administration of the trust. But an alien has no such interest, and hence results a difference in the measure of his right. To disqualify citizens from employment on the public works is not only discrimination, but arbitrary discrimination. To disqualify aliens is discrimination indeed, but not arbitrary discrimination, for the principle of exclusion is the restriction of the resources of the state to the advancement and profit of the members of the state. Ungenerous and unwise such discrimination may be. It is not for that reason unlawful.
The power of a state to discriminate between citizens and aliens in the distribution of its own resources is sanctioned alike by decisions of the courts and by long-continued practice. Neither aliens nor the citizens of other states are invested by the constitution with any interest in the common property of the people of this state. (McCready v. Virginia, 94 U.S. 391,394.) It has been held, therefore, that a state may deny to aliens, and even to citizens of another state, the right to plant oysters or to fish in public waters. (McCready v. Virginia,supra; People v. Lowndes, 130 N.Y. 455, 462; Commonwealth v.Hilton, 174 Mass. 29.) It may restrict to its own citizens *Page 162 the enjoyment of its game. (Geer v. Connecticut,161 U.S. 519, 529; Patsone v. Pennsylvania, 232 U.S. 138, 145.) It may discriminate between citizens and aliens in its charitable institutions, or in other measures for the relief of paupers. (Freund on the Police Power, sec. 712; State Charities Law [L. 1909, chap. 57], sec. 17.) It may make the same discrimination in the distribution of its public lands (McCready v. Virginia,supra); its mines (Justice Mining Co. v. Lee, 21 Colo. 260); its forests; or other natural resources. It may deny to aliens the right to hold or inherit real estate, except where the right has been secured by treaty. (Blythe v. Hinckley,180 U.S. 333, 341.) The origin of this last disability is historical (1 Pollock Maitland History of English Law, 445), but the policy underlying it is akin to the policy that underlies the others. The principle that justifies these discriminations is that the common property of the state belongs to the people of the state, and hence that, in any distribution of that property, the citizen may be preferred.
To defeat this law it must, therefore, be held that the constitution gives to the state a narrower liberty of choice in the expenditure of its own moneys than in the use or distribution of its other resources. I can find no justification for the supposed distinction. The construction of public works involves the expenditure of public moneys. To better the condition of its own citizens, and it may be to prevent pauperism among them, the legislature has declared that the moneys of the state shall go to the people of the state. The equal protection of the laws is due to aliens as to citizens (Yick Wo v. Hopkins, 118 U.S. 356,369; Lem Moon Sing v. United States, 158 U.S. 538, 547); but equal protection does not mean that those who have no interest in the common property of the state, must share in that property on the same terms as those who have an interest.
In saying this, I assume that the purpose of the statute *Page 163 is not to promote efficiency in the doing of the work, but to discriminate in the distribution of the public wealth in favor of the citizen. There may be forms of employment where efficiency would be promoted by the employment of citizens, and if the statute were restricted to such employments, its validity would not be doubtful. Just as the state may confine to citizens the right to hold public office, so, on the same ground, it may confine to citizens the right to serve the state in any way, whenever there is a relation between the exclusion of aliens and the promotion of efficiency. There are many lines of service where it is conceivable that the employment of citizens will make for a stable administration. If the government were to take over the railroads, there would be force in the argument that the trains should be run by citizens on whose loyalty the government might depend in times of national disaster. We have grown accustomed to the government's administration of the mails, and none of us doubts that the service is one from which aliens may be excluded. In all these branches of employment, it is not difficult to discover some relation between citizenship and efficiency. The prohibition of alien labor in this statute is, however, unrestricted. It applies to the most temporary and occasional service, and to the lowest grades of labor. Even in those cases, it is for the legislature, according to the People's claim, to determine whether some relation exists between efficiency and citizenship; between loyalty in service, and service by the loyal. Such tests of fitness have a fair relation to permanent positions where a spirit of allegiance to the employer may be cultivated. It seems far fetched, however, to apply them to the task of day laborers excavating for sewers or digging trenches for a subway. The relation in such circumstances is so remote that we may consider it illusory. At least, I shall so assume for the purpose of this discussion. The statute has been frankly defended at our bar as a legitimate preference of citizens, *Page 164 not to promote the efficiency of the work, but to promote the welfare of the men preferred; and from that aspect, it will be frankest and safest for us to view it.
To concede that such a preference was intended, is not to condemn the statute as invalid. The state in determining what use shall be made of its own moneys, may legitimately consult the welfare of its own citizens rather than that of aliens. Whatever is a privilege rather than a right, may be made dependent upon citizenship. In its war against poverty, the state is not required to dedicate its own resources to citizens and aliens alike. "The relief of the poor, the care of those who are unable to care for themselves, is among the unquestioned objects of public duty." (BREWER, J., in State ex rel. Griffith v.Osawkee Township, 14 Kan. 421.) The modern state everywhere is mindful of that duty. It has extended its bounty in large measure, though not without some discrimination, to aliens; but it would not trench upon their rights under the constitution if it were to confine its bounty to its citizens. As it may discriminate between citizens and aliens in relief, so also it may discriminate in employment. When payment for public works is to be made from public funds, it may prefer in employment its own citizens, since to them the legislature may believe that the first duty is owing. (United States v. Realty Co.,163 U.S. 427, 440.) Everywhere throughout the world the state, in its relation to the laborer, is assuming a larger obligation; but it cannot be that it owes this obligation to citizens and aliens in equal measure. In Great Britain there was enacted in 1908 a statute providing for old age pensions, restricted, it may be noted, to British subjects. (8 Edw. 7, chap. 40, sec. 1.) In the same kingdom there was enacted in 1911 a statute providing for insurance against unemployment. (1 2 George 5, chap. 55.) In our own country the workmen's compensation laws that have been adopted in many states are phases of the same world-wide movement. We are *Page 165 not concerned at this time with the validity of these measures for the alleviation of the laborer's lot. We mention them as illustrations of an expanding consciousness in the modern state that relief against unemployment, both after the event and before it, is part of the state's function. In one of our states the courts have sustained a law providing for state help to farmers. (North Dakota v. Nelson Co., 1 N.D. 88.) How far the state will go beyond its own citizens in thus applying its own resources to the betterment of conditions, the legislature must say. Preferences to relieve against pauperism after it has become an accomplished fact do not violate the rights of aliens. Preferences to avert a threatened pauperism, or to render pauperism impossible, stand on the same footing. In each instance the state announces as its public policy that the common property shall be used for the benefit of its common owners.
The argument is made, however, that there is a distinction between the right of government to exclude aliens from its own employment and the right to exclude aliens from employment by independent contractors. The ruling of the Supreme Court of the United States in Atkin v. Kansas (191 U.S. 207), and inEllis v. United States (206 U.S. 246) goes far to invalidate the distinction. The first case considered a statute of Kansas prohibiting the employment of laborers for more than eight hours a day on any public work. The statute was held valid in its application to laborers in the service of contractors. The second case sustained a like statute, passed by Congress, to regulate employment on public works in the District of Columbia. The presence of an independent contractor, interposed between the state and the laborer, did not check the power of the government to prescribe the hours of labor. But without reference to those decisions, the distinction is inadequate. In a real and substantial sense, it is the money of *Page 166 the state that is paid to the laborers, though the distribution is made through the medium of contractors. That money constitutes the fund out of which the wages of laborers are payable. This is not only true as an economic and social fact. It is true also as a statement of the legal rights of those concerned. The state (Lien Law [L. 1909, ch. 38], sec. 5) has given to any laborer employed by a contractor in the construction of a public improvement, a lien for the value of his labor upon the moneys of the state applicable to that improvement. The state has thus defined the channels through which the payment must be made. It has assumed a direct obligation not only to its own employees, but also to the employees of contractors on its works. To say that the latter class of employees receive, not the state's moneys, but those of the contractors, is to put form above substance. The great problems of public law do not turn upon these nice distinctions. The fundamental powers of the state and the fundamental rights of man are built upon a broader basis. The truth and substance of the situation is that the contractor's employees are doing the state's work, and are paid out of the state's moneys; and this truth ought not to be obscured by distinctions between contractors and servants established to fix the gradations of civil liability.
I do not ignore what was said in People v. Orange CountyRoad Construction Co. (175 N.Y. 84). There is a suggestion in that case, but not a ruling, that a distinction exists between employees of the state and those of a contractor in respect of the state's power to regulate the hours of labor. The later case of Atkin v. Kansas (191 U.S. 207) has obliterated the distinction, and so it was conceded in People ex rel. Cossey v.Grout (179 N.Y. 417). It is now perceived that all persons engaged on the public works, from the highest officers to the lowest laborers, through all the gradations of contractors and subcontractors, are, in a very vital sense, in the service *Page 167 of the state. The state has a legitimate concern in the selection of the men to be employed from one extreme of the official hierarchy to the other. Whether they are called officers or employees does not matter. The power of the legislature depends upon the substance of things, and not upon names and labels.
To hold that this statute violates the federal constitution would be to ignore the contrary judgment expressed in the constitutions and legislation of many other states. There is a like provision in the constitution of Arizona (Art. 18, sec. 10), a constitution which was approved (so far as this provision is concerned) by joint resolution of congress (37 U.S. Stat. at Large, p. 39). There are like provisions in the constitution of Idaho (Art. 13, sec. 5), and in that of Wyoming (Art. 19, § 1), which were also approved by congress. There is a like provision, restricted, however, to Chinese, in the constitution of California (Art. 19, sec. 3). There are like provisions applicable to all aliens in the statutes of Massachusetts (Acts of 1909, chap. 514, sec. 21), New Jersey (Compiled Statutes of New Jersey, 1910, p. 3023, sec. 15), Pennsylvania (Purdon's Digest [13th ed.], vol. 2, p. 2172, sec. 8), and California (California Code, 1906, Act No. 127, General Laws of California). Legislation similar in purpose may be found in Montana (Revised Code, sec. 2250), Nevada (Revised Laws of Nevada, 1912, sec. 3483), Oregon (Laws of Oregon, sec. 6267) and Hawaii (Acts of Congress, Revised Laws 1905). Unless the case against this statute is a clear one, the courts may not ignore this concurrence of opinion (Lemieux v. Young, 211 U.S. 489, 493.)
In thus holding that the power exists to exclude aliens from employment on the public works, we do not, however, commit ourselves to the view that the power exists to make arbitrary distinctions between citizens. We do not hold that the government may create a privileged caste among the members of the state. (Smith v. Texas, 233 U.S. 630, 638.) We do not hold that it may discriminate *Page 168 among its citizens on the ground of faith or color. (Strauder v. West Virginia, 100 U.S. 303; Gibson v. Mississippi,162 U.S. 565; Rogers v. Alabama, 192 U.S. 226, 231.) A citizen may not be disqualified because of faith or color from service as a juror. (Strauder v. West Virginia, supra.) For like reasons we assume that he may not be disqualified because of faith or color from serving the state in public office or employment. It is true that the individual, though a citizen, has no legal right in any particular instance to be selected as contractor by the government. It does not follow, however, that he may be declareddisqualified from service, unless the proscription bears some relation to the advancement of the public welfare. (Strauder v.West Virginia, supra, at page 305.) The legislature has unquestionably the widest latitude of judgment in determining whether such a relation exists, but we are not required to hold that there is no remedy against sheer oppression. Where the line must be drawn, we do not now determine. We do not say that the legislature could single out A and B by name, and declare that, though citizens, they should never be employed on any public work. It may well be that such disqualification would be illegal under the fourteenth amendment of the federal constitution, in that it would deny to the citizens thus arbitrarily excluded the equal protection of the laws, and illegal also under our state constitution, which provides (Art. 1, sec. 1): "No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers." This opinion has failed of its purpose if it has failed to demonstrate that those provisions are without application to the exclusion of aliens from the enjoyment of the state's resources.
It must also be evident that nothing in this opinion gives countenance to the view that the government may deny to aliens the right to engage in any private trade or calling on *Page 169 terms of equality with citizens. (Yick Wo v. Hopkins,118 U.S. 356, 369; Matter of Parrott, 1 Fed. Rep. 481.) If the calling is one that the state, in the exercise of its police power, may prohibit either absolutely, or conditionally by the exaction of a license, the fact of alienage may justify a denial of the privilege. (Patsone v. Pennsylvania, 232 U.S. 138;Comm. v. Patsone, 231 Penn. St. 46; Comm. v. Hana,195 Mass. 262; Bloomfield v. State, 86 Ohio St. 253; State v.Travelers Ins. Co., 70 Conn. 590, 600.) There must, however, be some relation in such cases between the exclusion of the alien and the protection of the public welfare. But subject only to the exercise of the police power, it is true that in dealings between man and man, the alien and the citizen trade and labor on equal terms. It is a denial of the equal protection of the laws when the government, in its capacity as a lawmaker, regulating, not its own property, but private business, bars the alien from the right to trade and labor. It is not a denial of the equal protection of the laws when the government, in its capacity as proprietor, issuing a mandate to its own agents (United States v. Martin, 94 U.S. 400; Carter, Law, its Origin, Growth and Functions, p. 230), bars the alien from the right to share in the property which it holds for its own citizens.
Because the state may thus discriminate in favor of the citizen in regulating employment on its public works, it does not follow, however, that it may exclude aliens from the enjoyment of those works after they have been completed. Aliens may use the public highways as freely as citizens. Aliens may use the railroads and other agencies of transportation as freely as citizens. The reason is that the right to move about from place to place within the state is incidental to the right to live within the state. There are probably many other public works so intimately related, if not to life, at least to health and comfort, that merely arbitrary or oppressive *Page 170 discrimination against the alien in regulating their use, would be a denial by the state of the equal protection of the laws. To attempt to draw the line in advance is futile. The question must in each case be whether the use is one that is reasonably incidental to life under modern conditions in a civilized state, or whether it is rather a privilege which the state may grant or may withhold. To be employed by the state on the public works, and to receive payment out of the public purse is, I think, a privilege rather than a right. (Atkin v. Kansas, supra, at p. 223.)
The argument is made that if the statute is not invalid as in conflict with the fourteenth amendment of the constitution, it is invalid as in conflict with treaties between the United States and foreign nations. Typical of these treaties is the one with Italy. It provides: "The citizens of each of the high contracting parties shall have liberty to travel in the States and Territories of the other, to carry on trade, wholesale and retail, to hire and occupy houses and warehouses, to employ agents of their choice, and generally to do anything incident to, or necessary for trade, upon the same terms as the natives of the country, submitting themselves to the laws there established. The citizens of each of the high contracting parties shall receive, in the States and Territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are, or shall be, granted to the natives, on their submitting themselves to the conditions imposed upon the natives." This treaty, in my judgment, does not limit the power of the state, as a proprietor, to control the construction of its own works and the distribution of its own moneys.
The argument is also made that discrimination between citizens and aliens may increase the cost of public works by limiting the supply of labor; and that to do this, in order to better the condition of our laborers, is to *Page 171 violate restrictions of the constitution of the state. Article VIII, section 9, of the state constitution provides that "neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking." Article VIII, section 10, provides, "No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid or support of its poor as may be authorized by law." The money that goes to laborers on public works is not given or loaned in aid of individuals within the meaning of these provisions. It is paid for service rendered. That is the direct and primary purpose of the payment. The primary and direct purpose being legal, the payment does not become illegal because a collateral and secondary purpose may be to protect a large class of the community against the peril of pauperism. In the long run, the payment may be found to have lessened the public burdens rather than to have increased them. (Noble State Bank v. Haskell,219 U.S. 104, 110, 111.) The same argument was made against the validity of the statute for an eight-hour day. It was said that the result would be to increase the cost for the benefit of favored classes. The legislature is now empowered by the constitution to fix the wages and salaries of all employees upon the public works. This authority embraces the direct increase of expense by increasing salaries beyond the minimum fixed by competition. It must also embrace the indirect increase of expense by regulations of employment tending to diminish competition. *Page 172
I have not overlooked, though I have not attempted to analyze, the decisions of this court in which the statutes governing the hours of labor on public works were the subject of discussion. (People ex rel. Rodgers v. Coler, 166 N.Y. 1; People v.Orange County Road Construction Co., 175 N.Y. 84; Ryan v.City of New York, 177 N.Y. 271; People ex rel. Cossey v.Grout, 179 N.Y. 417.) The specific proposition there decided has ceased to be law in this state. So far as it was founded on the theory of a conflict between the statute and the federal constitution it was overruled by the United States Supreme Court in Atkin v. Kansas (191 U.S. 207). So far as it was founded on the theory of a conflict between the statute and the constitution of this state it was superseded by the amendment of the constitution in 1905. (Const. art. 12, sec. 9; People exrel. Williams E. C. Co. v. Metz, 193 N.Y. 148.) The earlier cases are no longer authorities, therefore, for any proposition actually decided. Their reasoning may still instruct, but can no longer control us. They were decided in nearly every instance by a bare majority. In at least one instance a majority did not unite in anything more than the result. It would serve no useful purpose to review the varying opinions at this time. It is enough to say that they are not decisive of the case at hand.
This statute must be obeyed unless it is in conflict with some command of the constitution, either of the state or of the nation. It is not enough that it may seem to us to be impolitic or even oppressive. It is not enough that in its making, great and historic traditions of generosity have been ignored. We do not assume to pass judgment upon the wisdom of the legislature. Our duty is done when we ascertain that it has kept within its power. (Bertholf v. O'Reilly, 74 N.Y. 509, 515; People v.Gillson, 109 N.Y. 389, 398; Atkin v. Kansas, supra.) "It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great *Page 173 a degree as the courts." (HOLMES, J., in Missouri, Kansas Texas Ry. Co. v. May, 194 U.S. 267, 270.) If doubt exists whether there is a conflict between the statute and the constitution, the statute must prevail. (Barrett v. Indiana,229 U.S. 26, 31; People v. Gillson, supra.) These guiding principles are not to be honored by lip service only. Mischief and hardship, it is said, will follow the enforcement of this law. If that is so, we cannot help it. To correct those evils, if they shall develop, will be the province of legislation. The statute does not withold from the alien the rights secured to him by the constitution; and we must enforce it as the law.
The judgment of the Appellate Division should be reversed, and the judgment of conviction affirmed.